Companies subject to India’s new data protection law should assess practical implications.

By Gail Crawford, Fiona Maclean, Danielle van der Merwe, Kate Burrell, Bianca H. Lee, Alex Park, Irina Vasile, and Amy Smyth

The Indian parliament enacted India’s first comprehensive data protection law on 11 August 2023, namely the Digital Personal Data Protection Act 2023 (the DPDPA). The DPDPA will replace India’s existing patchwork of data protection rules[i] and is expected to trigger significant changes in how companies subject to Indian data protection laws process personal data. However, the law is not yet operational; no effective date has been established and there is no official timeline for the overall implementation. Stakeholders expect the law to come into force in a phased manner in the next six to 12 months, after:

  1. an independent agency responsible for enforcing the DPDPA — the Data Protection Board of India (the Data Protection Board) — is established; and
  2. the Indian government has framed the subordinate rules (which are expected to provide interpretative guidance on procedural steps and enforcement methodology).

The DPDPA is “umbrella” legislation, as it sets out only a high-level framework for India’s new data protection regime, with supplementary rules expected in due course. Though the new law is not yet operational, companies subject to the new law are advised to begin assessing potential practical implications at an early stage.

The French Data Protection Authority imposed a €280,000 fine for GDPR infringements and a €100,000 fine for violation of French cookie rules.

By Myria Saarinen

On 11 May 2023 the French Data Protection Authority (the CNIL) handed down its decision on the health website Doctissimo, imposing a €280,000 fine for the infringement of four provisions of the GDPR and an additional €100,000 fine for the violation of Article 82 of the French Data Protection Act (the French Cookies Rule).

Founded in 2000 by medical doctors, Doctissimo is one of the most widely visited health and well-being websites in France, with the majority of visitors located in France and Belgium. The website hosts articles, tests, quizzes, and forums related to health and well-being.

By Ian Felstead, Gail Crawford, Serrin Turner, Tim Wybitul, and Hayley Pizzey[1]

The final decision of the Irish Data Protection Commission (IDPC) in relation to the transfers of EU/EEA Facebook user data by Meta Platforms Ireland Limited (Meta Ireland) to its processor, Meta Platforms, Inc., in the US (the Transfers)[2] was published on 22 May 2023 (IDPC Decision).[3]

The IDPC found that the Transfers, made pursuant to Standard Contractual Clauses (SCCs), did not comply with Article 46(1) GDPR, as the SCCs together with the supplementary measures implemented “do not compensate for the deficiencies in US law in issue”. The IDPC also found that the Transfers could not be made pursuant to any of the derogations under Article 49(1) GDPR. In particular, the IDPC concluded that the “contractual necessity” derogation could not be relied on by Meta Ireland “to justify the systematic, bulk, repetitive and ongoing transfers to the US”.

In light of these conclusions, the IDPC made an order suspending the Transfers (the Suspension Order).

The court determined that mere infringement of the GDPR is insufficient for a damages claim, but that there is no minimum threshold for non-material damages.

By Tim Wybitul, Myria Saarinen, Isabelle Brams, Floriane Cruchet, Camille Dorval, Charlotte Guerin, Lara Nonninger, and Hayley Pizzey

In a recent judgment (Case C-300/21), the Court of Justice of the European Union (CJEU) held that mere infringement of the General Data Protection Regulation (GDPR) is insufficient to claim compensation under Article 82, absent any material or non-material damage suffered by the individual. In relation to non-material damage, the CJEU rejected the concept of a minimum threshold level of damage or harm to the individual.

Article 82 of the GDPR states that any person who has suffered material or non-material damage as a result of a GDPR infringement has the right to receive compensation.

The CJEU’s judgment has the potential to encourage non-material damages claims — whether individual or collective — as it is clear that there is no de minimis threshold for such damages. However, the judgment also holds that mere GDPR infringement is an insufficient basis for non-material damages and therefore the claimant must prove that they suffered damage — albeit not to a standard, European Union-wide minimal threshold. Therefore, the specific impact of this judgment will vary across Member States, depending on applicable domestic law underpinning non-material damages claims more broadly.

Organisations must provide individuals with information on the specific recipients of their data upon request.

By Tim Wybitul, Isabelle Brams, Calum Docherty, and Amy Smyth

The Court of Justice of the European Union (CJEU) has ruled that organisations must generally disclose the specific identity of data recipients on request from an individual in order to give effect to the right of access. Organisations may only limit their response to the mere categories of recipients if they cannot identify the specific recipients or if the request is manifestly unfounded or excessive. The court’s judgment in the case of RW v. Österreichische Post AG (Case C-154/21) follows the opinion given by CJEU Advocate General Giovanni Pitruzzella in mid-2022 (the Opinion). For background on the case and the Opinion, see this Latham & Watkins blog post.

The CJEU’s final ruling could subject companies to direct GDPR enforcement by DPAs notwithstanding national procedural rules, but may rule against strict liability under the GDPR.

By Tim Wybitul, Myria Saarinen, Isabelle Brams, Irina Vasile, and Amy Smyth

On 27 April 2023 Advocate General of the Court of Justice of the European Union (CJEU) Campos Sánchez-Bordona delivered an opinion in which he approved direct enforcement of the General Data Protection Regulation (GDPR) against companies but rejected

Organisations should expect increased scrutiny and enforcement activity around the role of data protection officers in the coming year.

By Gail E. Crawford, Fiona M. Maclean, Ben Leigh, and Amy Smyth

The European Data Protection Board (EDPB) has announced that its coordinated enforcement action for 2023 will focus on the designation and position of data protection officers (DPOs). Each year, the EDPB’s Coordinated Enforcement Framework (CEF) designates a topic EU data protection authorities (DPAs) should focus on. Although participation for any given year is voluntary, the EDPB has stated that this CEF will involve 26 DPAs across the European Economic Area, including the European Data Protection Supervisor.

The proposal provides a uniform basis for secondary research and clarifies uncertainty over implementation and interpretation of the GDPR but also raises many questions.

By Oliver Mobasser and Gail Crawford

On 3 May 2022, the European Commission launched its proposal for a Regulation for the European Health Data Space to “unleash the full potential of health data”. However, questions arise as to whether this proposal is a welcome facilitator of innovation or another burden for research-focussed businesses.

Among other goals

The Advocate General opined that data subjects must prove that they suffered damage from a GDPR breach in order to claim compensation.

By Tim Wybitul, Isabelle Brams, Lara Nonninger, and Hayley Pizzey

Article 82 of the General Data Protection Regulation (GDPR) states that any person who has suffered material or non-material damage as a result of a GDPR infringement has the right to receive compensation. The meaning of non-material damage, in particular, has been debated for some time. Some European courts have been generous in assessing non-material damages to claimants. A number of German courts, for example, have found that loss of control of personal data can amount to damage.[1] A series of cases before the Court of Justice of the European Union (CJEU) also question, among other things, whether damage — or proof of damage — is required at all under Article 82 GDPR.[2]

The bill would largely build on the UK data protection regime’s EU GDPR-style framework, albeit with UK-specific provisions.

By James Lloyd, Fiona M. Maclean, Calum Docherty, Irina Vasile, Alex Ford-Cox, and Amy Smyth

The UK government introduced the Data Protection and Digital Information Bill (the Bill) to Parliament on 18 July 2022, following the publication of its response to the consultation “Data: a new direction” (the Consultation). (For more information on the Consultation, see this Latham blog post.)

The Bill details the government’s proposals for reforming the current UK data protection regime (consisting primarily of the UK Data Protection Act 2018 (DPA 2018) and the UK General Data Protection Regulation (UK GDPR)).

This article presents an overview of the proposed changes. In part 2, we provide a deeper dive into certain key provisions.

In summary, the proposed changes — while broad in scope — do not amount to a wholesale change in direction for UK data protection laws. Assuming the Bill is passed without amendment, the UK regime would largely build on the current EU GDPR-style framework, albeit with UK-specific provisions. The changes can be grouped into two categories: (1) a more risk-based / outcome-focused approach and (2) developments in key areas around accountability, data subject rights, security, and legal grounds for processing.